In Re Marriage of DiFatta

714 N.E.2d 1092, 306 Ill. App. 3d 656, 239 Ill. Dec. 795
CourtAppellate Court of Illinois
DecidedJuly 29, 1999
Docket2-98-0511
StatusPublished
Cited by14 cases

This text of 714 N.E.2d 1092 (In Re Marriage of DiFatta) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of DiFatta, 714 N.E.2d 1092, 306 Ill. App. 3d 656, 239 Ill. Dec. 795 (Ill. Ct. App. 1999).

Opinion

JUSTICE COLWELL

delivered the opinion of the court:

Petitioner, Lynda L. DiFatta, appeals from the circuit court of Du Page County’s judgment for dissolution of marriage. On review, we address the following issues: (1) whether petitioner is barred from receiving maintenance from respondent-, Joseph V. DiFatta, pursuant to the parties’ antenuptial agreement; (2) whether the proceeds from a life insurance policy and from petitioner’s personal injury settlement were marital property and, if so, whether petitioner improperly dissipated them; and (3) whether the trial court properly determined that under the parties’ antenuptial agreement respondent was entitled to sole possession of his pension. We are also asked to determine the amount of child support that respondent overpaid.

BACKGROUND

Petitioner and respondent were married on July 23, 1983. Three days prior to the marriage, the parties executed an antenuptial agreement. The agreement, which was prepared by petitioner’s counsel, was executed to settle “all property rights *** and *** all matters of maintenance and support.” On September 8, 1992, the only child of the marriage, Taylor DiFatta, was born. On October 23, 1995, petitioner filed a petition for a legal separation. On January 3, 1996, respondent filed a counterpetition for the dissolution of marriage.

The evidence at trial, which commenced August 14, 1997, revealed that during the marriage the parties resided in a house located in Bartlett, Illinois. Petitioner had been awarded the house pursuant to a judgment of dissolution from a prior marriage. Before her marriage to respondent, petitioner alone paid the mortgage for the house. However, respondent testified that after their marriage he contributed funds to help pay the mortgage. In August 1990, the parties refinanced the home and changed ownership in the house to a joint tenancy. In 1993, the parties changed the form of ownership to a tenancy by the entirety.

Petitioner did not hold down a full-time position while she was married to respondent. Although she did work part time at several different positions, respondent asked her not to work outside the marital home. Thereafter, petitioner worked solely as a homemaker. At the time of the marriage, respondent was employed as a truck driver. However, he later found work as an electrician and became a member of the Illinois Brotherhood of Electrical Workers (IBEW). As a member of the IBEW respondent was eligible to participate in the IBEW’s pension plan.

On December 3, 1997, the circuit court entered a judgment dissolving the marriage. The court determined that the antenuptial agreement between the parties was valid and binding; that under the ante-nuptial agreement petitioner was not entitled to maintenance from respondent; that petitioner had dissipated two marital assets, the proceeds from a life insurance policy and from a personal injury settlement; that respondent was entitled to a credit for overpayment of child support; and that respondent’s IBEW pension was his sole and separate property.

A joint parenting agreement was entered at the same time as the judgment for dissolution of marriage. This agreement required respondent to pay $130 per week in child support. However, the support order temporarily reduced that amount to $100 per month for a period of eight years in light of the fact that respondent had overpaid child support and petitioner had dissipated marital assets. Respondent was awarded the income tax dependency exemption for the minor child.

On January 5, 1998, petitioner filed a motion for the modification of judgment of the dissolution of marriage and joint parenting agreement. In her motion, petitioner claimed, inter alia, that she was entitled to maintenance; that she did not dissipate any marital assets; that respondent was not entitled to sole possession of the IBEW pension; and that the trial court incorrectly calculated the credit due respondent for the overpayment of child support. Petitioner also sought reconsideration of the determination of respondent’s net income for child support purposes and the decision to award respondent the dependency exemption for income tax purposes. The trial court dismissed petitioner’s motion on March 20, 1998, and she timely appealed.

ANALYSIS

I. Antenuptial Agreement

The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

II. Dissipation of Assets

The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

III. Pension

The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

IV Child Support

We now determine the amount, if any, that respondent overpaid in child support. The trial court calculated that respondent overpaid by $5,490.69. Petitioner contests that amount, asserting that respondent overpaid child support only in the amount of $2,582.03. Respondent, on the other hand, claims that he overpaid child support in the amount of $3,239.56. In order to resolve this issue, we summarize the procedural history of the case in relation to child support.

On February 7, 1996, petitioner filed a petition for temporary custody, support, and other relief. On September 5, 1996, the trial court issued an order setting child support at the statutory 20% of respondent’s net monthly income of $3,437.85, or $687.57 per month. 750 ILCS 5/505(a)(l) (West 1996). The court also awarded petitioner $1,292.43 per month as additional child support to pay the mortgages on the Bartlett, Illinois, home. Thus, the court ordered respondent to pay child support in the amount of $1,980 per month, retroactive to September 3, 1996.

On September 16, 1996, respondent filed a motion for reconsideration of the trial court’s September 5, 1996, order. In his motion, respondent complained that the money awarded for the payment of the mortgages on the marital home was in the nature of maintenance. Respondent also claimed that by classifying the money for the mortgages as child support the court deprived him of certain tax benefits he would receive had the court labeled the funds as maintenance. In any event, respondent contended that the trial court’s award of $1,980 per month in child support was excessive because it amounted to 58% of his net monthly income.

Also on September 16, 1996, the trial court entered a support order requiring respondent to pay $461 per week in child support. The start date of the support was retroactive to September 3, 1996.

On September 26, 1996, respondent filed a motion to modify the temporary order of support. Respondent prayed for a reduction in the amount of child support due to an injury he allegedly sustained at work. In the motion, respondent averred that his only source of income was worker’s compensation benefits in the amount of $710 per week.

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Bluebook (online)
714 N.E.2d 1092, 306 Ill. App. 3d 656, 239 Ill. Dec. 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-difatta-illappct-1999.